Termination of Guardianship and Childs Best Interest Standard
At the Law Office of David P Schwarz we practice heavily in terminating guardianships in Orange County. A guardianship may be terminated upon petition of the guardian, a parent or the child if the court determines termination of the guardianship is in the child's best interest.
A Guardianship Attorney will explain to their client that the Court will listen to evidence that only provides that to terminative a guardianship must be made on the best interest standard. That means many factors must be determined by the Court that only look at what is best for the ward of the guardianship. Termination has little to do with the guardian but everything to do with the person that is being cared for.
A Guardianship lawyer will also explain to the client that under the Probate Code that it is in the best interest of children to be raised in a “permanent, safe, stable, and loving environment”; and, implicitly, therefore, the longer a guardianship has been in place in a safe and loving environment, the less likely a finding that termination of the guardianship would be in the child's best interest. Stability of the child place of residence is of utmost importance to the Probate Court and will weigh strongly in favor of keeping the guardianship in place despite the other parents wishes to get their child back.
Application of the child's best interest standard in declining to terminate a guardianship in favor of a biological parent, without any finding of parental unfitness, does not infringe on the parent's constitutional rights. Due process protection against interference with a parent's fundamental right to make day-to-day child rearing decisions applies only to fit custodial parents. Therefore if you are a parent seeking to terminate you must make sure that you are fit and stable for a period of time prior to filing a petition to terminate.
At the Orange County Law Office of David P Schwarz we will fight for our clients interest in protecting terminating the guardianship based on the best interest standard. We will make sure that a solid Evidentiary hearing as required by the Superior Court is presented.
The Guardianship lawyer at the probated hearing will make sure that all pertinent evidence is presented. Only disputed factual issues can be presented to the Court. Moreover, the court has a duty to consider and pass upon the efficacy of such evidence. “Where a court acts as a fact finder resolving matters of considerable significance to the parties, such as the best interest of a minor, a full evidentiary hearing is warranted before the decision can properly be made.”
The Probate Court must permit all parties to review all guardianship documents that are filed with the court. To grant petition and terminate guardianship without first providing guardian fair opportunity to oppose late-filed reports and present evidence whether termination was in minors' best interest.